Criminal justice reform measures advance despite $100M-plus cost

NOTE: After press time, SB 1183 and HB 1865 were both left in their respective Appropriations committees and did not advance past “Crossover Day.”

A pair of companion bills proposing sweeping changes to address issues with the criminal justice system survived review by each house’s Courts of Justice Committee.

The bills, Senate Bill 1183 and House Bill 1865, have been dubbed the Virginia Access to Justice Act. The identical measures propose establishing a public defender’s office in each judicial circuit and an appellate defender’s office to represent indigent persons in appeals of convictions, raising the limitation of fees that per-hour court-appointed counsel can receive, requiring commonwealth’s attorneys prosecute misdemeanors that are jailable offenses, and expanding the Virginia Victims Fund to provide financial relief to more victims.

Proponents of the Virginia Access to Justice Act say the measure addresses a crisis in the criminal legal system stemming from a shortage of court-appointed counsel and prosecutors and insufficient funding for prosecuting offenses.

“As a prosecutor who has 25 years’ experience as a chief public defender in Virginia, I know how much the proposed expansion of the public defender system will contribute to improving the quality of justice in Virginia,” Albemarle County Commonwealth’s Attorney Jim Hingeley said in a statement. “The Virginia Access to Justice Act ensures that defendants and their counsel have the resources they need to prevent unjust outcomes, while giving prosecutors the tools they need to faithfully pursue safety and justice in every case.”

But opponents of the act have balked at the large number of proposed changes and the cost, which is estimated to be more than $100 million.

“There would need to be money put aside for things like computers and travel to conferences and training and paper and for support staff that would have to address the influx of paperwork that adding these misdemeanor prosecutions would incur,” Alexandria Commonwealth’s Attorney Bryan Porter said. “It’s a huge change, and it would require a significant outlay of money.”

As of press time, both bills were awaiting review from each chamber’s Appropriations Committee.

Legislature review

SB 1183 was put under the microscope before the Senate Courts of Justice Committee on Jan. 22. Bill patron Sen. Creigh Deeds, D-Charlottesville, acknowledged that the act is “a very expensive proposal.”

“I understand that its implementation may need to be put off for a while,” Deeds said before the committee.

There are [a lot] of moving parts with a bill this large that endeavors to change the entire way Virginia administers the criminal system, and we just don’t think it’s completely right yet.

— Alexandria Commonwealth’s Attorney Bryan Porter

Sen. Richard Stuart, R-Montross, took specific issue with the expansion of the cases commonwealth’s attorneys would have to prosecute under the act.

“Why do we want to force prosecutors to try every case that they otherwise would not try just to give an individual either a public defender or a court-appointed lawyer when by doing that you also expose them to a jail sentence?” Stuart asked.

Deeds said the commonwealth would retain discretion under the bill, with Stuart responding that pressures may still exist to prosecute.

“If you load up an office with a bunch of prosecutors and you tell them they’ve got to prosecute them, the message is: ‘We’ve got to prosecute these cases because the General Assembly is not happy that we’re not,’” Stuart said.

During the public comment period, Norfolk Commonwealth’s Attorney Ramin Fatehi spoke in favor of the bill on behalf of a bipartisan group of six commonwealth’s attorneys.

“There are way too many people who have a lawyer who’s too busy or have no lawyer, and way too many people in Virginia where, when the magistrate issues their charges, due to a lack of funding there’s no prosecutor in the room,” Fatehi said.

Fatehi added that the bill “solves the $250 million deficit injustice.”

“This is a bill about centering the quality of our convictions, the assurance that prosecutors can nol pros the charges against innocent people and that victims can be made whole regardless of what crime they were a victim of, all while making sure we defend people’s civil rights,” Fatehi said.

The Virginia NAACP also supported the bill.

“Justice must be accessible to all, not just a privilege for the few,” Virginia NAACP President Cozy Bailey said. “The Virginia Access to Justice Act is a pivotal move toward dismantling the barriers that deny fair representation to our most vulnerable communities.”

Williamsburg-James City County Commonwealth’s Attorney Nathan Green spoke before the committee on behalf of the Virginia Association of Commonwealth’s Attorneys.

“There is so much in this bill that we support, but there is enough missing detail that we had to at least come up and point it out,” Green said, noting that, as written, his office would have to expand in order to get into matters including regulatory code.

He also noted budgetary issues.

“If you add a bunch more prosecutors, that will be great. That will allow us to do a lot more,” Green said. “But you also need to get the buy in from the localities that will, when that prosecutor shows up at my office, make sure he has a desk and a computer and the basics of doing the job.”

Following Green’s testimony, Deeds moved for a line amendment removing class 3 misdemeanors from the requirements to prosecute, stating that he intended the bill to require prosecuting only jailable offenses.

The Senate Courts of Justice Committee voted 10-5 to report and refer the bill to the Finance Committee, with Sen. Mark Peake, R-Lynchburg, joining the Democratic majority.

HB 1865, patroned by Del. Katrina Callsen, D-Charlottesville, was reported and referred from the House Courts of Justice Committee on a 14-8 procedural vote, with two Republicans joining the Democratic majority.

Differing opinions

Porter, who is president of the VACA, noted that the association opposes the bill because of a majority vote of its membership.

“However, it is not the philosophical underpinnings of the bill that caused the opposition,” Porter said. “There are [a lot] of moving parts with a bill this large that endeavors to change the entire way Virginia administers the criminal system, and we just don’t think it’s completely right yet.”

Porter added that because offices are already having a hard time finding qualified candidates, it would be difficult to fill the expanded positions under the act.

“We look forward to addressing the shortage of lawyers both on the prosecution and defense side,” Porter said. “But we just feel that this bill has a lot that needs to be worked on before it would be ready for us to take it back to the association to see if we could get behind it in the future.”

A bipartisan group of six commonwealth’s attorneys, including Fatehi and Hingeley, released a statement welcoming the bill as a way to address a “crisis” that “resulted in a deficit of over $240 million in the funding for criminal prosecution and defense.”

“Victims navigating the criminal justice system all too often face additional burdens. Cases may take months to move forward due to a lack of defense attorneys, or victims in misdemeanor trials may have to present their case without a prosecutor,” Colonial Heights Commonwealth’s Attorney Alfred Gray Collins said. “By ensuring both sides of the criminal system are appropriately funded, this bill will ease the burden on victims.”

Cost

The cost of the act was a continuous point of debate, with Senate Majority Leader Sen. Scott Surovell, D-Fairfax, referring to it as “the $250 million bill before us” during the committee hearing.

The Department of Planning and Budget released a fiscal impact statement for the bill on Jan. 30, stating that the measure “is expected to have an indeterminate, but potentially significant fiscal impact on the Virginia Victims’ Fund.”

Per the statement, the cost of establishing the 24 public defender offices needed under the act, plus the appellate defender office, would be between $51.4 million and $67 million. Approximately $8 million to $10 million would also be required for ongoing operating costs for the Indigent Defense Commission.

According to the Compensation Board, 423 additional prosecutors, 106 additional paralegals, and 211 administrative assistants would need to be hired under the act. The positions were estimated to cost $49.8 million annually. The statement noted that increasing prosecutions as outlined “would significantly impact the funding needed for Commonwealth’s Attorneys offices,” while finding an “indeterminate” fiscal impact for raising fees for court-appointed counsel.